Illustration for article titled Justice Kagan Asks, Totally Hypothetically, How a Travel Ban Would Work if Our President Was Bigoted in Some Wayem/em
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On Wednesday morning, the Supreme Court was presented with oral arguments over the legitimacy of Trump’s travel ban in Trump v. Hawaii. The case is over the ban’s third iteration, which was struck down by lower courts. Justice Elena Kagan wanted to know what would happen if a really shifty, bigoted, terrible president implemented a very discriminatory ban. Hypothetically.


Solicitor General Noel Francisco argued that the president has the right to ban “any aliens, or any class of aliens” under a provision of the Immigration and Nationality Act if they’re perceived as a threat to national security. But once the president officially has that power, who can put a stop to it?

From the Washington Post:

Justice Elena Kagan similarly asked Francisco about a hypothetical anti-Semitic candidate for president who, once elected, put in place a proclamation blocking entry for citizens of Israel. She asked: Could the courts intervene in such a situation?

“This is an out-of-the-box kind of president in my hypothetical,” Kagan added, prompting laughter from the courtroom.


Francisco responded that this was a “tough hypothetical,” because this totally imaginary hateful president would need to prove a security threat:

He conceded that if Cabinet officials knew the president was ordering a ban based on religious animus, because he told them as much, they would be “duty bound” to resign or refuse to comply with his order to come up with a justification.

“Is everything that the president said effectively that?” Kagan asked. Trump had, on the campaign trail and afterward, suggested that he favored a Muslim ban, though the Justice Department argues that his travel ban is not that.

Interesting thought experiment about the potential abuse of power a deranged, hateful grandpa could get away with, if he were somehow elected president of the United States.

Contributing Writer, writing my first book for the Dial Press called The Lonely Hunter, follow me on Twitter @alutkin

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